Enter your email to subscribe:

The New York Appellate Division for the Second Judicial Department imposed a five-year suspension of an attorney, rejecting a referee's conclusion that he had acted with subjective good faith and should not be disciplined in the following actions:

On May 20, 2002, the respondent visited the psychiatric unit of
Columbia Presbyterian Hospital where his cousin, Rubin J., was a
patient. The respondent knew of Rubin's recent history of psychiatric
hospitalizations. Reynaldo Hylton, a notary, accompanied the
respondent. The respondent also brought a deed and other legal
documents that he had prepared. The respondent had Rubin execute the
deed, conveying Rubin's house in Brooklyn to the respondent and his
wife, without any consideration. Rubin continued to be liable as a
mortgagor in connection with a mortgage loan that financed his purchase
of the house.

The respondent recorded the deed the next day and ignored
immediate requests by Rubin and his attorneys to reconvey the property
on the ground that the conveyance was a nullity by virtue of his
hospitalization.

The court noted that the conveyance had been set aside in litigation and concluded:

The respondent's defense is based on his own nonexpert diagnosis,
and that of his hand-picked notary, that Rubin was of sound mind and
was competent to cede ownership of his property without consideration
and without the advice of an independent attorney. The respondent's
counsel posits a subjective standard, based on what was purportedly in
the respondent's mind at the time he had Jordan execute the deed,
notwithstanding the objective facts. That standard was adopted by the
Special Referee, and factored prominently in his assessment of the
witnesses' credibility.

The findings of the Special
Referee, however, are contradicted by some of the respondent's own
witnesses, and find no support in the hospital records. Significantly,
the respondent's misconduct was not limited to his actions of May 20,
2002. Despite numerous opportunities to return the deed, the
respondent's actions in moving into the residence, collecting rents
from tenants while Rubin continued to repay the mortgage loan, and
refusing to vacate the premises until a City marshal's intervention was
sought, demonstrate an ongoing intent to deprive Rubin of his property.

The respondent's position disregards the protection afforded by
the New York State Department of Mental Hygiene, the advice of family
members, the rules of professional conduct, and rulings by both the
Supreme Court and the Appellate Division. Under the circumstances, we
find that the Special Referee erred in failing to sustain the charge.

The attorney had been charged with a single count of violating the prohibition against conduct involving dishonesty, fraud, deceit or misrepresentation. The present New York version of the rule, New York DR 1-102(a)(4), contains the language "which adversely reflects on fitness as a lawyer." Model Rule 8.4(c) does not have that qualification, although no sane bar counsel prosecutes such a charge if the dishonest conduct does not raise such a question. (Mike Frisch)